Citation: 9 BLC (AD) 256, 10 BLC (AD) 58, 9 BLC (AD) 27, 10 BLC 283, 7 BLC 578, 6 BLC 130, 6 BLC 54, 6 BLC 549, 7 BLC 16, 7 BLC 697, 8 BLC 391, 9 BLC 56, 6 BLC 594, 8 BLC 81, 8 BLC 320, 8 BLC 320, 8 BLC 414, 8 BLC 688, 9 BLC 81, 9 BLC (AD) 33, 9 BLC 416, 10 BLC 53
Case Year: 1908
Subject: The Code of Civil Procedure
Delivery Date: 2018-05-06
The Code of Civil Procedure, 1908
[V of 1908]
Order I rule 10(2)—
The loan as defined in section 2(kha) of the Artha Rin Ain cannot be read that in the background of particular transaction one of the parties to the transaction obtains loan for materialisation of the transaction to his benefit or to discharge his obligation to the other party arising out of said transaction, the party as regard whom the loanee has discharged his obligation, such party would also be considered a loanee of the Bank being the beneficiary. The High Court Division has committed no error in refusing to interfere with the order of the trial Court in striking out the names of the defendant Nos. 3 and 4.
Sonali Bank vs Md Sirajul Hoque Chowdhury & others 9 BLC (AD) 256.
Order I, rule 10(2)—
The undisputed position in law is that plaintiff cannot have a relief against a person who is not a party in the suit. Provision of Order XXII, rule 10 of the Code of Civil Procedure provides for continuation of a suit in the background of the situation given therein i.e. assignment, creation or devolution of any interest during the pendency of the suit. In the instant case, none of the aforesaid situations are present and, as such, the said provision is of no assistance to the plaintiff-respondent in rebutting the contention of the appellants that the suit so far the same relates to validity of the deeds dated October 27,1969 for non impleading the recipients of the said deeds is bad in law.
Abu Naser Md Wahidun Nabi vs Balai Roy 10 BLC (AD) 58.
Order II rule 3—
Admittedly, the respondent Nos. 1-6 who are strangers to the suit for specific performance of contract could not proceed with the revisional application against the order passed allowing the amendment of the written statement having no locus standi/cause to contest the same. Moreso, the plaintiff allegedly entered into an agreement for sale of the suit land with the respondent Nos. 1-6 after obtaining an ex parte decree for specific performance. Since the said decree has been set aside and the suit has been restored to its original file and number, until a decree is passed in favour of the plaintiff, no right would accrue to the respondent Nos. 1 to 6 over the suit land for enforcement of their alleged right under the agreement for sale with the plaintiff. The respondent Nos. 1-6, at the relevant time, being totally the strangers to the instant suit could neither be a party to the suit or entitled to be transposed as the petitioner in the revisional application to proceed with the Rule as they have no right to get any relief whatsoever therein.
Jahanara Begum and others vs Hazera Khatun and others 9 BLC (AD) 27.
Order II, rule 1(3)—
The plaintiff cannot file a subsequent declaratory suit in respect of self-same property. The petitioner could pray for declaration of title and recovery of possession in the earlier suit but he could not subsequently file another declaratory suit by adding more prayers and, as such, the subsequent suit is barred under Order II, rule 1(3) of the Code of Civil Procedure.
Syed Anisur Rahman vs Government of Bangladesh & ors 10 BLC 283.
Order III rule 4(2)—
When Rule 4(2) of Order III of the Code clearly mandates that unless the client itself determined the appointment of the learned Advocate with the leave of the Court till then such appointment will remain valid and none other than the client can seek for determination of the appointment of the learned Advocate and hence the impugned order debarring the learned Advocate from conducting the hearing of the suit on behalf of the defendants is liable to be set aside.
Ferdoushi Begum & Rubi and others vs Shaufo Khatun & ors 7 BLC 578.
Order III rule 6—
Service return shows that the appellant was not at Barisal at the relevant time, the service is no service in the eye of law in the absence of any written document authorising respondent 1 to act as her agent to receive any summon or notice and hence no agency is created and the appeal was disposed of ex-parte it and will be reheard.
Hosne Ara Jalil vs Abdur Rab and others 6 BLC 130.
Order VI rule 2—
Rule 2 of Order VI of the Code enshrines that every pleading shall contain statement in a concise form of the material facts on which the party relies for his claim or defence as the case may be but not the evidence by which they are to be proved. The manner of possession was a j subject matter of evidence to be adduced at the time of trial.
Hasenuddih (Md) vs Bangladesh, and others 6 BLC 54.
Order VI rule 4—
The trial Court has correctly declared that the judgment and decree dated 24-5-98 and 31-5-98 respectively as obtained by defendant No. 1 in previous Title Suit No. 51 of 1997 was obtained by collusion and practising fraud in getting cancellation of the sale deed dated 14-5-69, when such decree goes whatever the cloud cast over the title of the plaintiffs is also cleared.
Abdus Sukur (Md) and others vs Bhasani Mondal and another 6 BLC 549.
Order VI rule 2—
It is a cardinal principle of law that material facts must be stated by the parties either in offence or in defence. If a party omits to state a material fact in his pleading, he will not be allowed to lead evidence of that fact at the trial unless the pleading is lawfully amended. Even if, evidence is given on such facts, such evidence, must be kept out of the consideration of the Court. Even an argument involving a question of fact which has not been pleaded by the party concerned cannot be allowed at the stage of argument. In spite of clear assertion in the plaint about the written acknowledgments by the defendants, the contesting defendants have not refuted these facts in their written statement as a result of which these assertions of the plaintiff stand admitted according to the law of pleadings.
Reliable Jute Traders- and another vs Sonali Bank and others 7 BLC 16.
Order VI rule 4—
When concealment, misrepresentation and suppression of facts are the elements of fraud and such elements of fraud have been proved in the instant case, the partition decree has been obtained by practising fraud upon the Court which is void ab initio.
Fazlu Kha vs Mokhlesh Bepari- 7 BLC 697.
Order VI rule 4—
Petitioner Bank after acceptance of Credit documents cannot turn back and cannot decline to reimburse payment given to beneficiary opposite party Company by opposite party Bank on the plea of fraud. It is observed that relief by way of injunction is available to that litigant who is prompt and vigilant and not to him who is indolent and sleep and sleep over his right. Petitioner Bank slepts and slepts and then lately rose seeking relief in bringing forth complaint of fraud. It was too late in the day to wake up and rise in ventilating grievances as to genuineness of credit documents.
National Credit and Commerce Bank Limited vs Prime Bank Limited and ors 8 BLC 391.
Order VI rule 4—
The plaintiff having failed to prove that her LTIs were obtained by the defendant on any blank stamp papers by practicing any fraud, the Courts below committed no illegality in disbelieving the case of the plaintiff and there is no error of law resulting in an error in the decision occasioning failure of justice.
Saheda Khatun and others vs Shaikh Md Ramjan AH 9 BLC 56.
Order VI rule 17—
When a plaint is amended the suit is generally to be taken out from the list of peremptory hearing in order to enable the defendants to file an additional written statement, if any, they want. In this case, within 8 days of amendment of plaint the suit was again posted for ex parte disposal and such hurried action of the trial Court to dispose of the suit without presence of the petitioners does not appear to be bonafide.
Habibur Rahman & others (Md) vs MA Rashid and others 6 BLC 594.
Order VI rule 17—
The plaintiff is not entitled to get the plaint amended seeking for a decree for specific performance of contract converting the suit of one character into suit of another character and to substitute one distinct cause of action depriving the right of other party acquired by lapse of time when specified limitation is three years from, the date of refusal.
Government of Bangladesh and another vs Safia Choiodhury and another 8 BLC 81.
Order VI rule 17—
The order dated 27-3-94 recording rejection of the amendment petition was very much revisable order under section 115, CPC and since a remedy in the Court was available to the plaintiff-opposite parties, inherent power under section 151 of the Code could not be at all invoked and the learned Subordinate Judge, thus, committed a substantial error of law in allowing the application presented under section 151 of the Code and allowing the amendment application dated 26-10-93.
Abdul Hannan & am us' Sharfuddin Md Reza Hai & ors 8 BLC 320.
Order VI rule 17—
Learned Subordinate Judge committed a patent illegality in allowing the amendment application of the plaintiff-opposite parties dated 26-10-1993 on reviewing the order dated 27-3-94 recording rejection of amendment petition. In the event of rejection of the first amendment application there was no justification on the part of the learned Subordinate Judge to allow the second amendment application moreso on reviewing the order dated 27-3-94 recorded by him in refusing to amend the plaint. Finality must attach to a decision rendered by a judge and the decision recorded by the said judge can be set aside or reversed not by the said judge but by a Superior Judge of a higher Court,
Abdul Hannan and another vs Sharfuddin Md Reza Hai & others 8 BLC 320.
Order VI rule 17—
In a pending Civil Revision case the plaintiff-petitioner filed an application for amendment of the prayer portion of the plaint and prayed for a decree for confirmation of possession as well as the permanent injunction so that the defendant-opposite parties cannol disturb the plaintiff in her possession of the suit land. Since there is no legal bar to allow such amendment of plaint at revisiorial stage, relying on a decision ol the Appellate Division of the Supreme Court of Bangladesh, the application for amendment of plaint was allowed.
Kajol Das & ors vs Manowara Begum and ors 8 BLC 414.
Order VI rule 17—
By way of proposed amendment the eight and half kathas of property had been attempted to be substituted by nine and half kathas of property on plot No. 3159 and in the event of allowing proposed amendment there would be virtually a new case with new schedule and plaintiff would be required to stand on witness box to give testimony in assertion of his claim of possession with respect to nine and half kathas of property on plot No. 3159 and defendants-opposite party side in order to negative plaintiff's claim would be, also, required to file additional written statement controverting claim of plaintiff introduced by way of amendment and, also, to stand on witness box to give testimony in support of their case. In a suit for permanent injunction fundamental point is factum of possession and title can be gone into incidentally in coming to a just decision on possession. So, by proposed amendment the cause of action appeared to have been changed and plaintiff-petitioner could not be allowed to turn back to the stand taken by him earlier. 3.
Siddique (Md) Master vs Samsul Hoque and others 8 BLC 688.
Order VI rule 17—
In the Civil Revision case presented against the appellate decree; the plaintiff did not obtain any order of stay staying further proceeding of the money suit. So, after 18-7-88 as there was no stay operating the plaintiff was free to make the application for amendment for adding any claim to the relief already made in the suit. In the circumstances, the claim for further damages made beyond three years of the application for amendment already became barred.
Mirza Fashiul Alam and others vs Sonali Bank and ors 9 BLC 81.
Order VI rule 17—
While on the basis of the materials as are on the record the relief as prayed for can very much be given to the plaintiff, then for mere non-compliance of the direction of the appellate Court while, at one time, sending the suit back on remand to the trial Court directing the plaintiff to amend the plaint suitably to a suit for partition from a suit for declaration of title and recovery of possession seeking relief of different nature from the relief prayed for by the plaintiff apparently erroneous then the Court is quite competent to grant the relief sought for by the plaintiff in spite of non-compliance of the direction of the Court to amend the plaint.
Golam Rasul (Md) vs Chan Mohammad 9 BLC (AD) 33.
Order VI rule 17—
Amendment of the plaint regarding valuation of the suit will not change the nature and character of the suit. Mere delay in filing such application for amendment of plaint will not put an embargo.
Maleka Akther and ors vs Rahima Akhterandors 9 BLC 416.
Order VI, rule 17—
From the amendment of the written objection filed by the pre-emptees in both the cases it is found that the pre-emptees admitted the preemptors as co-sharer in the case jote by deed of Heba executed by their father Amiruddin Shah in favour of the pre-emptors and other brothers. In view of such admission, which has. been overlooked or was not brought to the notice of the Courts below it is clearly established that the pre-emptors are co-sharers in the case jote and the finding by the Courts below, that the pre-emptors are not co-sharers being contrary to the materials on record are not maintainable and are liable to be set aside.
Elahi Boksa Hedo and another vs Maqbul Hossain Sarker 10 BLC 535.
Order VI rule 17 and Order VIII rule 2—
Since the plaintiffs are found in possession of the suit land, there is no bar to allow the prayer for joint possession with defendants No. 7-10 along with declaration of title when amendment of the pleading can be allowed at any stage of the proceeding and if the amendment is allowed it would neither change the nature and character of the suit nor the plaint and when it is necessary to decide the questions involved in the suit. Moreso, as there was no statement in the written statement regarding non-passing of consideration of the kabala of the plaintiffs, the defendants' evidence to that effect was inadmissible in evidence.
Ramesh Chandra Mondal and ors vs Hemayet All Sheikh and ors 9 BLC 525.
Order VII rule 1(e)—
It is the plaint as a whole which is to be considered and not the terminology or for that matter a few stray references. Cause of action of a suit arises when right of a plaintiff is denied or invaded by the other side and the suit for declaration of title on a property will be well within time if it is laid within the period of six years as prescribed under Article 120 of the Limitation Act.
Hasenuddin (Md) vs Bangladesh, and others 6 BLC 54.
Order VII rule 2—
Uncorroborated statements of the plaintiff regarding cash payment to the defendant Nos. 1 arid 2 create doubt about such payment when in the plaint as well as in the deposition of PW 1 there is no specific statement as to the amount and the date of payment, only a period has been mentioned for such cash payment. Similarly, no specific date has been given regarding payment by cheque and there is no witness or documentary evidence about the payment through cheque. In the absence of any specific statement in the plaint and in the deposition of the PWs regarding the date, the amount of cash payment, amount and date of encashment of any cheque, the plaintiffs have failed to prove the payment by cash and the payment by cheque.
Shaikh Haji Musa Hakkani vs Kazi Md Abdul Majed and ors 7 BLC 534.
Order VII rule 3—
In a suit for permanent injunction the plaintiffs shall have to prove their exclusive possession in the suit land to get a decree. In the instant case, the plaintiffs and defendants are co-sharers and they have right, title and interest in every inch of land. When the plaintiffs have failed to prove their exclusive possession in giving description sufficient to identify the suit land out of a vast plot the lands remained unspecified and complicated question of title and possession is involved in the suit and the question of partition is involved as well and in such view of the matter the simple suit for permanent injunction is not at all maintainable.
Hamida Akhter Khaturi and others vs Md Ramjan 7 BLC 287.
Order VII rule 3—
It is contended on behalf of the petitioner that it will be evident from the purchase deeds of the plaintiff-respondents that the schedule appended therein is vague and therefore the High Court Division committed gross illegality in disturbing the finding of the appellate Court. It is a settled law that in case of dispute between the area and the boundary the boundary shall prevail.
Abul Kalam vs Md Abu Taker and others 8 BLC (AD) 149.
Order VII, rule 3—
In the plaint it has been stated that some portion of the suit tank has been encircled by the defendants by constructing some pillars but nowhere in the plaint the suit tank has been specified or demarcated. The plaintiffs having failed to comply with the mandatory requirement of law in giving clear specification or boundary sufficiently to identify the suit tank, the plaintiffs are not entitled to any decree.
Abdur Rahim (Md) and others vs Government of Bangladesh 10 BLC 767.
Order VII rules 4 & 11—
The suit has been filed for declaration of jote right and title to the suit land by adverse possession in a representative character asserting possession therein and there is no provision in law either under section 42 of the Specific Relief Act or any other law including Evidence Act specifically providing any bar in filing the suit of the nature for which the plaint of the suit is liable to be rejected.
Sharifuddin Ahmed (Md) and ors vs Md Ala Uddin and others 8 BLC (AD) 111.
Order VII rule 10—
The Artha Rin Adalst committed no error in taking the view that the Bangladesh Commerce Bank Limited as reconstituted by Act XII of 1997 as a commercial bank and the defendant having taken loan from its predecessor Bangladesh Commerce and Investment Limited, the suit was maintainable before the said Adalat.
Hai Iron Industries and Re-Rolling Mills Ltd and others vs Bangladesh Commerce Bank Ltd and others 9 BLC 462.
Order VII rule 11—
The emphasis given on the service of notice enjoined by section 152 of the Pourashava Ordinance as a condition precedent for institution of a suit clearlv shows the intention of the legislation and such provision is mandatory and not directory and non-service of such notice is a complete bar against the suit and hence the plaint is rejected.
Nurul Islam (Md), Chairman and others vs Sheikh Enterprise and others 6 BLC 47.
Order VII rule 11—
Provisions of Order VII rule 11 of the Code of Civil Procedure are not attracted by mere submissions that the joint holding had been separated prior to the transaction in question and that the pre-emptor petitioner did not have any cause of action or locus standi to maintain the application for pre-emption as the case land had already been re-conveyed to the previous owner. Such case is to be proved by the pre-emptee opposite party by adducing evidence.
Shafique Uddin Ahmed (Md) vs Abdur Rashid & others 7 BLC 255.
Order VII rule 11—
So far as the preemption case is concerned, it is treated neither as a suit nor its application can be treated as a plaint of the suit and hence the question of passing any rejection order on such application under Order VII, rule 11 of the Code does not arise at all.
Shafique Uddin Ahmed (Md) vs Abdur Rashid & others 7 BLC 255.
Order VII rule 11—
If the conditions contained in rule 11 of Order VII of the Code are not applicable recourse cannot be taken to section 151 for the purpose of evading or circumventing the conditions laid down therein. Recourse to section 151 for rejection of a plaint can be resorted to in exceptional cases where if the suit is allowed to continue it would amount to an abuse of the process of the Court or in cases where the plaint was signed by a person not authorised to sign the same and the plaintiff did not remedy the defect when called upon to do so. Defendant having failed to make out such a case the Court below rightly did not resort to section 151 for rejecting the plaint.
Aminur Rahman Khan vs Trade Aris Insurance 7 BLC 330.
Order VII rule 11 —
In a suit for partition the petitioner filed an application under Order VII, Rule 11 of the Code of Civil Procedure for rejection of plaint on certain allegations. Learned Subordinate Judge without disposing the said application directed the petitioner to file written statement which is neither legal nor proper. Accordingly, learned Subordinate Judge was directed to dispose of the said application on its own merit before proceeding with the suit.
Moyez Uddin (Md) and ors vs Md Ahizuddin Mondal 7 BLC 583.
Order VII rule 11—
Notice as required under section 152 of the Pourashava Ordinance having not been served by the plaintiff before filing of the suit it is barred under section 152 of the Pourashava Ordinance. When the suit was instituted at that time the Pourashava was in existence. On a perusal of the plaint it appears that the plaintiff has not acquired any legal character to institute the suit. Plaintiff was not even selected for the post of Vaccinator rather, she was selected only in the written examination. Hence, the plaint is rejected.
Zakia Sultana vs Maksuda Parvin and others 8 BLC 168.
Order VII rule 11—
The plaintiff-appellants without making the remedies available to them challenged the Tightness of the judgment and decree in a suit before a court of ordinary civil jurisdiction. The suit, thus is eminently barred by law justifying rejection of plaint.
Delwar Hossain and others vs Janata Bank and others 8 BLC 411.
Order VII rule 11—
Had the High Court Division read the plaint in its entirety, then there would have been no reason for the High Court Division to hold that the plaint did not disclose any cause of action.
Sunder Ali and others vs Md Serajul Islam Sarker and others 9 BLC (AD) 244.
Order VII rule 11—
Suit filed by plaintiff-appellants for a declaration that first-defendant respondent is unsound is absolutely misconceived and there could not be any sort of cause of action in respect of declaration sought. The plaint, thus, manifestly appears to be barred by law from the statement made in the plaint. Law is well settled that in the interest of justice if the plaint cannot be rejected under any of the provisions contained in Order VII, rule 11, of the Code then the inherent power of court envisaged under section 151 of the Code can be very much pressed into service in burying the suit at the threshold. While dismissing the appeal the High Court Division awarded a cost of Taka 5,000 upon the plaintiffs-appellants for their blameworthy conduct.
Rupban Bibi and others vs Abdul Majid and others 9 BLC 320.
Order VII rule 11—
The proceeding initiated under section 96 of the SAT Act is a summary one. Such application for preemption can never be termed as a plaint. Further taking evidence upon such application for deciding the consideration of the transfer is serious abuse of the process of the Court. Without disposing of the case finally, learned Assistant Judge entertained a misconceived application and thereby wasted time and energy not only of the parties but also of the Court. Learned District Judge has correctly approached the issues involved and set aside the order of the trial Court which calls for no interference.
Abdul Hamid Gazi (Md) vs Md Shamsul Hacjue and ors 9 BLC 458.
Order VII rule 11—
In a pre-emption case the pre-emptee filed an application under Order VII, rule 11 of the Code for rejection of plaint on the ground that the pre-emptor failed to make statutory deposit according to consideration money of the kabala in question which was heard by the trial Court and examined the witnesses and directed the pre-emptor to deposit the balance amount. Before final disposal of the case, the entertainment of such an application under Order VII, rule 11 read with section 151 of the Code and the decision thereunder is a misconceived one.
Abdul Haque Gazi vs Shamsul Haque and others 9 BLC 600.
Order VII rule 11—
The defendant never denied to execute and register necessary deed of sale on receipt of balance of the consideration. She was all through pressing for the balance money in Court. The plaintiff clearly exposed himself to be not ready and willing for enforcement of the agreement. In a suit for enforcement of a cpntract, the plaintiff has no right to question the title and possession of the defendant. Whenever the plaintiff raises the question about title or possession of the defendant the cause of action for the suit goes and it is not subsisting. The plaint was rightly rejected by the learned Subordinate Judge as there was no cause of action for the suit.
ABM Shamsuddin vs Anwara Begum and ors 9 BLC 630.
Order VII rule 11—
In deciding the question as to whether a plaint is liable to be rejected the Court is always required to peruse the plaint only and Court is not permitted to travel beyond the plaint to dig out grounds to reject the plaint which is a settled principle of law as has been rightly found by the High Court Division.
Bangladesh Jatiya Samabaya Shilpa Samity Ltd vs Shan Hosiery, Proprietor Md Abu Taleb and others 10 BLC (AD) 8.
Order VII, rule 11—
Transfer of a property to meet expenditure of marriage of sister does hot construe usufructuary mortgage as contemplated under section 6 of the said Act. From the provision of section 6 as mentioned above, it further appears that, if any building, (^ailsjva) is situated on the land in question section 6 of the Act cannot be invoked.
Akkas, Ali Biswas (Md) vs Ashit Kumar Mojumder 10 BLC (AD) 53.
Order VII, rule 11—
In a suit for a declaration of title and confirmation of possession and injunction the defendant No. 1 filed an application under Order VII, rule 11, CPC which was rejected by the impugned order. Since sections 61 and 79 of the Banking Companies Act postulate that the power of the High Court Division to decide all claims in respect of bank companies and High Court Division has got the exclusive jurisdiction to" entertain and decide on the cases whether such cases have arisen before or after the date of the order of the winding up of the bank company or before or after commencement of the Banking Companies Act, the impugned order was set aside.
Pioneer Bank Ltd vs Md. Haris AH and others 10 BLC 672.
Order VII rule 11 & Order XIV rule 2—
On 15-4-92 the defendants filed an application under Order VII rule 11 and Order XIV rule 2 of the Code of Civil Procedure for dismissing the suit on the ground that the suit building having been included in the 'Ka' list the suit was not maintainable under section 6 of the Ordinance No. LIV of 1985. The original suit itself became not maintainable because the Ordinance provided that enlistment of the building was conclusive evidence of its being an abandoned property. The suit was thus rightly dismissed.
Siruj-ud Dowla vs Government of the People's Republic of Bangladesh & others 6 BLC (AD) 90.
Order VIII, rule 1—
It appears that in the absence of cross-examination of the PW and in the absence of contrary being proved by the defendants and in the absence of any legal pleadings having been made by any of the defendants, there is no case on the side of the defendants before the Court.
Nazrul Islam (Md) vs MM Moqbul Hossain and others 10 BLC 319.
Order VIII rules 1 and 2—
The publication of notice of a suit filed, in representative character is mandatory in nature because the people of the concerned locality must be made aware of the said suit so that they can get an opportunity to protect their own right and interest. But sub-rule 1 of Rule 8 does not in any way impose any legal impediment on the operation of sub-rule 2.
Siddique Mia vs Habibur,Rahman and others 6 BLC 109.
Order VIII rule 3—
It is a cardinal principle of law that material facts must be stated by the parties either in offence or in defence. If a party omits to state a material fact in his pleading, he will not be allowed to lead evidence of that fact at the trial unless the pleading is lawfully amended. Even if, evidence is given on such facts, such evidence must be kept out of the consideration of the Court. Even an argument involving a question of fact which has not been pleaded by the party concerned cannot be allowed at the stage of argument. In spite of clear assertion in the plaint about the written acknowledgments by the defendants, the contesting defendants have not refuted these facts in their written statement as a result of which these assertions of the plaintiff stand admitted according to the law of pleadings.
Reliable Jute Traders and another vs Sonali Bank and others 7 BLC 16.
Order VIII rule 6—
Order VIII rule 6 of the Code contemplates a defendant to put up a plea of set off, which requires payment of ad valorem Court fee under the Court Fees Act, if a defendant wishes to whittle or thwart the plaintiff's claim on the ground that the plaintiff also owes him money. It is as clear as broad daylight from the pleadings and the evidence that the defendant-appellant's case can, by no stretch of imagination, be encapsulated within the principle of adjustment as has been enunciated in the decision of the Apex Courts.
Pubali Bank Ltd and others vs Kabir Ahmed Chowdhury 8 BLC 706.
Order IX, rule 4—
Restoration of the title suit to its original file and number was not allowed only on the ground that in the petition the number of original suit and the date of disposal of the suit were not mentioned but it appears from the application for restoration that the case humber of the title suit has been mentioned in the cause title and the date of disposal has been mentioned in the prayer portion and hence the impugned judgment and order is set aside and the suit is restored to its-origial file and number.
Taraf AH & another vs Chowdhury- Thanvir Ahmed Siddiqui & another 249.
Order IX, rule 4—
An application under section 151 of the Code for restoration of the suit to its file and number was filed on the date on which it was dismissed for default whereupon the learned Assistant Judge by exercising his inherent powers restored the suit to its own file and number and thereby he committed no illegality in spite of not following specific provision of law as provided under Order IX, rule 4 of the Code.
Amiya Bala Debi vs Jafar Chowdhury and others 10 BLC 144.
Order IX rule 9—
Being unsuccessful in restoring the pre-emption case filed under section 96 of the State Acquisition and tenancy Act the Pre-emptor preferred an appeal under Order XLIII, rule l(c) of the Code which was allowed by the learned Subordinate Judge in the impugned order. It is the view of our Appellate Division that no appeal lies against an order dissmissing an application made under Order IX, rule 13 of the Code for restoration of a proceeding under section 96 of the State Acquisition and Tenancy Act and such view shall apply equally to an application laid under Order IX, rule 9 of the Code for restoring a preemption case to its file and number. Thus, the Miscellaneous Appeal preferred before the District Judge was not tenable in law.
Haripada Mandal vs Bidhan Chandra Mondal 8 BLC 155.
Order IX rule 13—
The Miscellaneous Case was filed for setting aside the ex parte decree on the grounds that neither summons of the suit had been served upon her nor did she enter appearance nor did execute any Vokalatnama nor did file any written statement in the suit. Miscellaneous Case was filed well within time from the date of knowledge. All these questions can be decided at the time of final hearing of the Miscellaneous Case on production of evidence from both the sides and, as such, the question of striking off or expunging of the Miscellaneous Case on the very day of presentation and registration of the Miscellaneous Case does not arise at all.
Abu Mohammad Yousuf vs Basiran Nessa and others 6 BLC 163.
Order IX rule 13—
When it is the duty of a Court not to pass any order behind the back of a party which would adversely affect such party and the Court is also obliged to correct its own default, if any, by invoking its inherent power, both the Courts below erred in law resulting in an error in the decision occasioning failure of justice in holding that the delay in making the application under Order IX, rule 13 of the Code could not be condoned in the absence of an application under section 5 of the Limitation Act.
Habibur Rahman & others (Md) vs MA Rashid and others 6 BLC 594.
Order IX rule 13—
It appears that the learned Joint District Judge on assessment of evidence on record found that the petitioners' application under Order IX, rule 13 was barred by limitation and could not prove the fact of her illness. The High Court Division after considering the facts and circumstances of the case and the decision placed before them rightly held that without examination of doctor the medical certificate granted by him regarding illness is inadmissible in evidence.
Anwara Begum and others vs Shah Newaj 8 BLC (AD) 160.
Order IX rule 13—
Sub-section 12 of section 96 of the State Acquisition and Tenancy Act provides for an appeal against any order passed under section 96 of the said Act. On the strength of section 141 of the Code of Civil Procedure other remedies contemplated in the Code are, also, available to a party aggrieved in a proceeding under section 96 of the said Act. In the matter of setting aside an order passed ex parte the pre-emptee, against whom ex parte order had been passed, can pursue an appeal under .section 96(12) of the State Acquisition and Tenancy Act as well as lay petition under Order IX, rule 13 of the Code of Civil Procedure and, also, a Review under Order XLVII, Rule 1 of the Code.
Ismail Hossain Biswas (Md) vs Rahima Khatun and others 8 BLC 144.
Order IX rule 13—
Under the Ain of 1990 two remedies were available to judgment debtor plaintiff-appellant. One, a petition under Order IX, rule 1.3 of the Code of Civil Procedure and the other, an appeal before the High Court Division. In both deposit of half of decretal amount was a positive requirement and mandate. The plaintiff-appellants without making the remedies available to them challenged the Tightness of the judgment and decree in a suit before a court of ordinary civil jurisdiction. The suit, thus is eminently barred by law justifying rejection of plaint.
Delwar Hossain & ors vs Janata Bank & ors 8 BLC 411.
Order IX rule 13—
The statements made in the plaint of the subsequent suit in support of prayer 'Ka' are struck:out and consequently, the matter (s) that was. the subject matter of the previous suit shall not be the subject matter of the subsequent suit and shall also not be a subject matter for adjudication in the subsequent suit.
Rasheda Begum vs MM Nurussafa and others 9 BLC (AD) 223.
Order IX rule 13—
The findings of the High Court Division that the petitioner could not prove that he was prevented by sufficient cause from appearing when the suit was taken up for hearing and decreed ex parte are based on correct assessment of the materials on record.
Abdul Hai and others vs Atar Islam and others 9 BLC (AD) 254.
Order IX rule 13—
An application for setting aside ex parte decree was filed whereupon a Miscellaneous case was registered and during the pendency of the case the ex parte decree was put into execution. Accordingly, an application for staying the proceeding of the execution case was filed arid the same was rejected by the impugned order. The executing Court failed to exercise its jurisdiction and thereby erroneously rejected the prayer for stay.
Ishak Mia (Md) vs Rangichara Tea Garden and another 9 BLC 58.
Order IX rule 13—
On 1-4-92 there was no provision for filing a Miscellaneous Case under Order IX, rule 13, CPC in the original Artha Rin Adalat Ain. The judgment and decree passed ex parte on 19-2-92 could not be set aside by filing a Miscellaneous Case under Order IX, rule 13, CPC as the said provision was not available at the relevant time to the judgment-debtor. The amending provision of the Artha Rin Adalat providing the provision of Order IX, rule 13, CPC came into force on 17-7-92. In such facts the Miscellaneous case filed under Order IX, rule 13, CPC was not entertainable and accordingly, present appeal j is not maintainable.
Ramizuddin vs Pubali Bank Ltd & anothers 9 BLC 201.
Order IX rule 13—
Under Order IXrtrie 13 of the Code of trial Court has got jurisdiction to set aside a decree passed ex parte but such discretion could only be exercised on either of the grounds, namely, (a) summons was not duly served or (b) absentee" defendant was prevented by sufficient cause from appearing when the suit was called on hearing. In the absence of such findings, the trial Court has got no jurisdiction to set aside an ex parte decree. The learned Joint District Judge allowed the application on the view that it was reasonable to give them opportunity to contest without giving any reasons and he also could not say that the summons was not served upon them and, as such, the exercise of discretion by the learned judge resulted in serious indiscretion and, as such, the impugned order is set aside.
Asia Bewa and others vs Md Bachchu Fakir and am 9 BLC 411.
Order IX, rule 13—
None of the essential conditions of rule 13 of Order IX of the Code having been met, the trial Court committed an error in passing the impugned order setting aside the ex parte decree allowing his application filed under Order IX, rule 13 of the said Code and I restoring the SCC Suit No. 3 of 97 resulting in an error in the decision occasioning failure of justice and, as such, the same is liable to be set aside.
Shahjahan Miah (Md) vs Md Mustaque Hossain & another 10 BLC 118.
Order IX, rule 13—
It is not disputed that by gazette notification dated 20-2-1950 the total area of CS Plot No. 533 (suit plot) i.e. 2.30 acres of Mouza-Tejkunipara, PS Tejgaon, District-Dhaka along with other lands were acquired by the Government The learned Attorney-General further submitted that although the plaintiff cleverly sought declaration of title over the entire 2.30 acres of land of the suit plot but that will not bring the suit out of the mischief of section 14A of the Act. Since there are some patent incongruities in the plaint of Title Suit No. 208 of 1994 brought by the plaintiff Shamirunnessa Bibi the ex parte decree dated 12-12-1984 ex facie is not sustainable.
Bangladesh, represented by the DC, Dhaka and others vs Shamirunnessa Bibi & others 10 BLC (AD) 123.
Order IX, rule 13—
The petitioners in support of their case for setting aside the ex parte decree totally failed to establish that summons was not served on the defendants or the defendants were prevented by sufficient cause from appearing before the Court when the case was taken up for hearing. In that state of the matter the learned Subordinate Judge was totally in error in setting aside the ex parte decree and consequently, the High Court Division has not committed any error or illegality in setting aside the erroneous order of the Court below.
Government of Bangladesh vs Sunil 'Kumar Khan 10 BLC (AD) 153.
Order IX, rules 13 and 14—
Notice as contemplated under Rule 14 of the Order IX of the Code is required to be served only upon those opposite party or parties who figured as plaintiff or plaintiffs who had been graced with a decree. Plaintiffs-decree-holders were only the opposite parties upon whom notices are required to be served and other defendants-opposite parties who were not plaintiffs-decree-holders and not beneficiaries of decree are not required to be served with notices. Decision rendered and conclusion reached by learned Assistant Judge in dispensing with service of notices upon defendants-opposite parties do neither appear to have suffered from any illegality, legal infirmity and error of law nor any failure of justice seem to have been occasioned.
A Gani and others vs Abdul Jabbar Kha & ors 8 BLC 33.
Order XI, rule 2—
At no stage the Government raised the plea that the suit was barred in the absence of consequential relief. There is a distinction between consequential relief under section 42 of the Specific Relief Act and the substantive relief as defined in Order XI, rule 2 of the Code of Civil Procedure. The respondent has not abandoned any substantive relief in earlier suit. But what would happen if the Government ignored the declaration in respect of the suit land. The answer is the plaintiff can bring a fresh suit for possession, or he can bring a contempt proceeding.
Sena Kalyan Sangstha vs Haji Sufi Fazal Ahmed and ors 10 BLC (AD)198.
Order XI rule 2—
The Order XI, rule 2 of the Code of Civil Procedure applies only in the case of a suit. The proceeding under section 43 of the Companies Act, 1994 is a special proceeding under a statutory jurisdiction and is not a proceeding in the nature of a suit as contemplated under section 9 of the Code of Civil Procedure. Therefore, the provisions of Order XI, rule 2 of the Code of Civil Procedure has no manner of application in the facts and circumstances of the present case. The Court below has rightly passed the impugned order to the effect that the suit is not barred by any law and the same shall proceed in accordance with the law.
Dhaka Stock Exchange Ltd and others vs Motiur Rahman 7 BLC 150.
Order XI rule 7—
The statements made in the plaint of the subsequent suit in support of prayer 'Ka' are struck out and consequently, the matter (s) that was the subject matter of the previous suit shall not be the subject matter of the subsequent suit and shall also not be a subject matter for adjudication in the subsequent suit.
Rasheda Begum vs MM Nurussafa and others 9 BLC (AD) 223.
Order XIV rule 3—
Neither any issue was framed nor any decision was arrived at on the point of improvement of the case land or on the point as to whether it was a case of waiver or acquiescence by trial Court as pleaded by the pre-emptees. Section 96(3)(b) of the State Acquisition and Tenancy Act contemplates an enquiry as to the actual amount of expenses incurred by the pre-emptee for the purpose of improvement as claimed which has not been complied with by the trial Court. It further appears that those findings have not been based on any reasoning, arrived from assessment of evidence on record as contemplated by the mandatory provision of rule 4(2) of Order XX of the Code of Civil Procedure.
Mozibar Rahman Molla (Md) vs Md Rehazuddin 8 BLC 479.
Order XX rule 4(2)—
Although it is a judgment of affirmance based on concurrent finding of facts yet those findings being devoid of any reasoning deriving on assessment of evidence on record, those are not at all binding on the revisional Court since the said findings cannot but be termed as perverse. The provisions of rule 4(2) of Order XX of the Code of Civil Procedure is a guideline, mandatory for both the trial Court and the appellate Court as well. Ends of justice would be met if the case is sent back on remand to the trial Court for passing a judgment in compliance with rule 4(2) of Order XX of the Code of Civil Procedure.
Mozibar Rahman Molla (Md) & another vs Md Rehazuddin and ors 8 BLC 479.
Order XX rale 4(2)—
Neither any issue was framed nor any decision was arrived at on the point of improvement of the case land or on the point as to whether it was a case of waiver or acquiescence by trial Court as pleaded by the pre-emptees. Section 96(3)(b) of the State Acquisition and Tenancy Act contemplates an enquiry as to the actual amount of expenses incurred by the pre-emptee for the purpose of improvement as claimed which has not been complied with by the trial Court. It further appears that those findings have not been based on any reasoning, arrived from assessment of evidence on record as contemplated by the mandatory provision of rule 4(2) of Order XX of the Code of Civil Procedure.
Mozibar Rahman Molla (Md) & am vs Md Rehazuddin and ors 8 BLC 479.
Order XXI rule 22—
The executing court acted beyond its jurisdiction in issuing the notices upon the judgment debtors inasmuch as the Court is not required to issue such notice as the decree execution case has been laid within three months from the date of the decree and hence the executing court has committed an error of law occasioning failure of justice in passing the impugned order.
Jahanura Begum and others vs MD, Rupali Bank and others 6 BLC 107.
Order XXI rule 29—
An application for setting aside ex parte decree was filed whereupon a Miscellaneous case was registered and during the pendency of the case the ex parte decree was put into execution. Accordingly, an application for staying the proceeding of the execution case was filed and the same was rejected by the impugned order. The executing Court failed to exercise its jurisdiction and thereby erroneously rejected the prayer for stay.
Ishak Mia (Md) vs Rangichara Tea Garden and another 9 BLC 58.
Order XXI rules 29 and 99—
No litigant got a right to unlimited drought on court's time and public money in order to get his affairs settled in the way he likes. The executing court got no power even by exercising the inherent power to order stay of execution where the suit is against decree- holder filed by a third party.
Rotish Chandra Das vs Sudhir Chandra and anr 6 BLC 296.
Order XXI rule 52—
In effecting a valid attachment in respect of the fixed deposit it was necessary to issue a prior notice under rule 52 of Order XXI of the Code as the notice is a condition precedent to the order of attachment. In the absence of such statutory notice the communication of the order dated 22-7-89 of the Subordinate Judge to the Commercial Court No. 1 is not sanctioned by the Rule.
Hanif (Md) vs Agrani Bank and another 6 BLC 43.
Order XXI rule 54—
In a pre-emption case when the case holding does not appear to be a mortgaged property or charged for mortgage sale, such holding, even, if sold in execution of any money decree in any money execution proceeding, any alienation by the judgment-debtor does not come within the purview of the doctrine of lis pendens in the absence of the proof of service of notice under Order XXI, rule 54 of the Code upon the alienor or the alienee as the case may be.
Badiul Alam being dead his heir Fazlul Karim vs Md Nurul Islam 8 BLC 30.
Order XXL rule 58—
In the instant case it is apparent that on 19-8-89 when the Miscellaneous case was filed there was no existence of any attachment, the concerned vessel had already been sold in auction and was physically handed over to the decree-holder-auction-purchaser and hence the Miscellaneous case filed under Order XXI, rule 58 of the Code praying for release of the trawler in question from attachment was misconceived, was not maintainable and was liable to be rejected.
AK Khan and Co Ltd vs Zanak Enterprise 9 BLC 90.
Order XXI rule 58—
It appears that the petitioner's brother was in default in the repayment of the loan amount before he made the transfer of the property to his sister. Sonjoy Kumar Fodder obtained the loan having given a personal guarantee and by creating charge documents, and as such, his property would have been liable to attachment and, on the face of it, it appears that he disposed of the property in order to keep the same away from the clutches of his creditors. The learned trial Judge has alsq found it to be admitted that the whole of his family have left for India. Such mass family exodus has also been rightly taken into consideration by the learned Judge. The petitioner has not come with clean hands as the transaction by way of gift was clearly made with a view to depriving the creditor's access to the property. The provisions of Order XXXVIII, rules 7 and 8 of the Code relate back to the provisions of Order XXI of the Code and would, therefore, entail an application by the petitioner under Order XXI, rule 58 of the Code. The remedy being open to the petitioner under the Code of Civil Procedure, any application under the writ jurisdiction is not maintainable. Moreso, the transaction from which the petitioner seeks to benefit, that is the gift, appears ex facie to be tainted by fraud upon creditors and hence she is not entitled to get equitable relief under the writ jurisdiction.
Nitu Poddar vs Eastern Bunk Ltd and am 9 BLC 209.
Order XXI, rule 58—
Some important facts were not stated and those were suppressed and by such suppression of facts present opposite party No. 1 disentitles himself to continue with an order of stay and, as such, the application for vacating the order of stay is allowed and the stay granted at the time of issuance of Rule stands vacated and the execution proceeding will proceed in accordance with law.
Babul Miah vs Md Din Islam and others 10 BLC 89.
Order XXI, rules 64 and 82—
Admiralty action is an action in rem as well as in personem. Secondly, it brooks no controversy that the Admiralty suits are not governed by the provisions of the Code rather they are governed by the Admiralty Court Rules and the Admiralty Court Rules appear to be complete for the purpose of regulating the proceedings in suits brought before the Admiralty Court. So, the question of applying Rule 82 to onwards of Order XXI of the Code does not arise at all in the instant case.
Sonali Bank vs Bengal Liner Ltd and others 10 BLC 148.
Order XXI, rule 90—
An execution proceeding or a Miscellaneous proceeding arising out of execution proceeding cannot be suggested to be a Bicharadhin (KmYJrJiLj) case or suit. The Ain of 1990 is a special statute and right created by statute prescribes manner of enforcing it. Party can seek to enforce that right as provided in the statute itself and not in any other mode nor in any other law. The petition for transfer has been presented under section 24 of the Code and not under section 5(3). Petition under section 24 of the Code was misconceived and learned District Judge, also, failed to take into stock' this legal aspect of the matter. Judgment-debtor filed Miscellaneous case under Order XXI, rule 90 of the Code for setting aside the auction sale in the Artha Rin Adalat, who passed the preliminary decree and final decree. It was the absolute jurisdiction and competency of that Adalat to adjudicate and dispose of the said Miscellaneous case and not by any other Artha Rin Adalat as mandated by section 5(1) of the Ain of 1990.
Standard Chartered Bank vs. Farook Paints and Varnish Manufacturing Company Ltd 10 BLC 414.
Order XXI rules 100 and 101—
After hearing both the parties the trial Court ordered to put the third party into possession within 7 days which is challenged before the High Court Division in revision. It appears that many people were in possession of the property by erecting houses but the plaintiff did not implead them as parties nor did he ask for possession after evicting them. The defendant who entered into an agreement for sale had no possession as evidenced from the record and hence there is nothing to interfere with the decision of the trial Court.
Mahmuda Khan vs Abdul Wadud Mollick 6 BLC 41.
Order XXII rule 3—
In the suit for enforcement of the plaintiff's personal service right the plaintiff died during the pendency of appeal and the appeal being the continuation of the proceeding the plaintiff could not be substituted but surprisingly the plaintiff was substituted by his widow and two minor child by the Court of appeal below. Considering the facts and circumstances of the case it appears that the entire proceeding initiated by plaintiff has abated on his death.
Rabindra Nath Boss and others vs Krishna 'Bain and others 8 BLC 47.
Order XXII rule 4—
By the impugned order the High Court Division refused the prayer for substitution on the view that Md Rhalilur Rahman Biswas was not dead. Similar application was also rejected subsequently. The Appellate Division disposed of the appeals with a direction to the High Court Division to investigate the matter and find out the truth of the assertions made by the parties.
Komela Begum and others vs ADC (Revenue) and ors 6 BLC (AD) 120.
Order XXII rule 4—
Without substituting the heirs of the deceased, respondent 1, the appellant filed an application for adding his heirs in his place which was allowed in spite of objection.
Suruj Miah vs Yakub AH and others 6 BLC 317.
Order XXII, rule 10—
The undisputed position in law is that plaintiff cannot have a relief against a person who is not a party in the suit. Provision of Order XXII, rule 10 of the Code of Civil Procedure provides for continuation of a suit in the background of the situation given therein i.e. assignment, creation or devolution of any interest during. the pendency of the suit. In the instant case, none of the aforesaid situations are present and, as such, the said provision is of no assistance to the plaintiff-respondent in rebutting the contention of the appellants that the suit so far the same relates to validity of the deeds dated October 27, 1969 for non impleading the recipients of the said deeds is bad in law.
Abu Naser Md Wahidun Nabi vs Balai Roy 10 BLC (AD) 58.
Order XXIII rule 1—
Although the appellate Court affirmed the decision given by the trial Court in respect of title and possession of the plaintiff in the suit land yet he dismissed the suit merely on the ground of limitation on misconception of the provision of law as embodied in both Article 122 of the Limitation Act as also of the expression used in Order XXIII, rule 1 of the Code of Civil Procedure.
Abdul Haque and another vs Shone AH alias Moulana Shamsul Haque and others 9 BLC 347.
Order XXIII rule 1(2)—
Immediately after receipt of a copy of the written statement by the plaintiff an application for withdrawal of the suit was filed alleging that in the written statement it has been specifically pointed out that in the plaint there were certain defects and such defects cannot be cured by amendment of plaint which has been extensively quoted in the judgment of the High Court Division and hence in the absence of any legal infirmity no interference is called for.
'Imran Hossain Momin (Md) vs Md Amir Hossain and others 6 BLC (AD) 105.
Order XXVI rule 1—
On perusal of the application for examination of the witnesses on commission it appears that neither any such ground as required under rule 1 of Order XXVI of the Code has been made out in the application nor the Election Tribunal gave any finding of its own or assigned any reason whatsoever as required thereunder. The impugned order is liable to be set aside. But instead of issuing any Rule the application was allowed summarily.
Kamaluddin Chowdhury (Md) vs Md Anowarul Azim and others 9 BLC 667.
Order XXVI, rule 9—
From the statements made in the application for local investigation it appears that the whole grievance of the plaintiff is that the defendant has made construction on the suit land by violating the order of injunction, if that be so, his remedy is otherwise and if so advised he may take appropriate step in that aspect under appropriate law, but for that matter there cannot be any local investigation as has been prayed for. So far as the submission of Mr Lutfur Rahman as to the obtaining of Rule on the point of local inspection although the court below allowed the prayer for local investigation is concerned but the High Court Division is of the view that High Court Division while disposing of a matter can correct a mistake suo moto.
Abdus Sattar and ors vs Md Ali Hossain Wmihan.W-.BLC 711.
Order XXVI, rule 9—
During the pendency of the suit for specific performance of contract the petitioner as plaintiff filed an application under Order XXVI, rule 9 of the Code for ascertaining the exact position of the suit land by investigating the same by an Advocate Commissioner as the suit land was not partitioned by metes and bounds which was rejected by the impugned order. In view of such circumstances the trial Court has not exercised his discretion judiciously and accordingly, the Rule is made absolute.
Habibullah Chowdhury (Md) vs Md Ibrahim and others 10 BLC 146.
Order XXVI rule 9—
The rules of procedure are clearly not intended to allow a litigant who had been unsuccessful in the lower court to patch up the weak parts of his case and fill up the omissions in the. revisional court sending the case on remand for holding local investigation.
Sabur Ali (Md) and others vs Latif Khan and others 6 BLC (AD) 62.
Order XXVI rule 9—
In view of the statement made in the written statement raising the question of identity of the suit land necessitating the filing of an application for local inspection to be conducted by an Advocate Commissioner it has become necessary to ascertain whether or not the land described in the deeds as stated in the plaint attract the suit land.
Golam Sarwar Chowdhury vs Bangladesh 7 BLC 397.
Order XXVI rule 13—
In a suit for partition, which undoubtly remains pending till the final decree is passed and signed, whatever may be the claim and counter-claim between the parties raised on the basis of registered documents should be decided by the trial Court by adjusting and modifying the preliminary decree and accordingly the Advocate Commissioner should be directed to work out the preliminary decree to make it final. Trial Court will decide such dispute as to objection of the plaintiffs that they have not made the disputed sales and whether the documents are forged and fabricated so that the claim and counter claim of the parties in respect of transfers made, before or after preliminary decree can be made allowing the parties to prove there documents by adducing evidence, if any.
Panna Bibi and ors vs Rebeka Khatun and others 8 BLC 246.
Order XXVI rule 14—
Delivery of specific sahams to the contending parties by the Advocate Commissioner is an inseparable part of the compromise decree and it cannot be said that the learned Assistant Judge was left with no further power to give effect to the agreed terms of the compromise decree and such objection cannot be raised for the first time in civil revisional jurisdiction. When registered notices were served upon the parties by the Advocate Commissioner before holding the Commission, the plea that the Advocate Commissioner effected delivery of possession in the absence of the petitioner cannot be entertained.
Fazlul Hacjue vs Hazrat Ali Sikder 6 BLC 592.
Order XXX, rule 1—
Plaintiff having laid the suit impleading^the Managing Partner of the registered partnership firm and the partnership firm itself, the suit is quite maintainable in view of the provision of Order XXX, rule 1 of the Code. It can in no way be said that the suit as framed is not maintainable because of non-impleading heirs of Abdul Motalib since the partnership firm, which is a registered one and its managing partners are parties in the suit.
Bulbul Begum vs Md Sanwar Belaland another 8 BLC (AD) 97.
Order XXXIV rule 11—
In view of the unusual horrible abnormal situation prevailing all over the country during the days of liberation war in 1971 and that the plaintiff had no control over the situation in which the loss of the pledged jute-took place and that the defendants also suffered heavy loss in their business and other properties during these days, the defendants are exempted from making payment of any interest on the principal sum of Taka 75,000 but the interest on the decretal amount of Taka . 75,000 will be assessed at the rate of 15% per annum from. today till realisation.
Reliable Jute Traders and another vs Sonali Bank and others 7 BLC 16.
Order XXXVIII rule 5—Letter of Credit —Attachment before judgment—
The court, in fact, has no jurisdiction to pass an order of attachment before judgment against the proceeds of letters of credit payable to a supplier by a commercial bank for any alleged dispute between the buyer and the seller, and this principle has consistently been followed in respect of international commercial transaction under the International Banking Rules.
Chartkar International Holding Ltd and another vs Gooryong (BD) Textile Ltd and others 6 BLC 265.
Order XXXVIII rule 5—
Nothing was shown as to whether there is any obstruction or delay in execution of eventual decree, the plaintiff petitioner is not entitled to get an order of attachment of the vessel before judgment. In the facts and circumstances of the case, the parties may resolve their problem by taking recourse to an appropriate forum which is recognised in private International Law and the application under Order XXXVIII Rule 5, CPC is inapplicable. The bank guarantee given in Court has no manner of application in this particular case and the trial Court is directed to return the bank guarantee in favour of the learned Advocate concerned.
Mafuzul Haque (Md) vs Precious Shipping Public Co Ltd and ors 9 BLC 395.
Order XXXVIII, rule 5—
In absence of any requirement being satisfied before the Court or there being any allegation as to delay and to leave the port of Bangladesh with the intent to obstruct or delay the execution of an eventual decree the High Court Division did not find any reason for making the impugned order by the learned Subordinate judge. It also appears that the learned Subordinate Judge has not issued any show cause notice as to why the defendant should not furnish any security nor it directed the defendant to furnish security as prescribed under rule 5(1) of Order XXXVIII, CPC. Thus the High Court Division's unhesitating conclusion is that the order impugned before the Court is not made in compliance with the requirements of Order XXXVIII, rule 5 CPC and is liable to be struck down. Where the order of attachment was not made in terms of rule 5(1) and rule 6 of Order XXXVIII, CPC and the Bank Guarantee was offered pursuant to such an order the Bank Guarantee shall not continue to remain in force till the disposal of the suit.
Formentor Maritime Inc and another vs Transcontinental Imex, Inc 10 BLC 659.
Order XXXVIII, rules 5 and 6(1)—
Considering the decisions of our Court the High Court Division rightly held that the order of attachment of the Subordinate Judge was not in terms of Rule 6(1) of Order XXXVIII, CPC as in the instant case there was nothing to show that the defendant had any intention to obstruct or delay the execution of an eventual decree which does not require to be interfered.
Transcontinental Imex, Inc vs Formentors Maritime Inc. and others 10 BLC (AD) 148.
Order XXXVIII rules 5(1), 7 and 8—
The provisions of Order XXXVIII, rules 7 and 8 of the Code relate back to the provisions of Order XXI of the Code and would, therefore, entail an application by the petitioner under Order XXI, rule 58 of the Code. The remedy being open to the petitioner under the Code of Civil Procedure, any application under the writ jurisdiction is not maintainable. Moreso, the transaction from which the petitioner seeks to benefit, that is the gift, appears ex facie to be tainted by fraud upon creditors and hence she is not entitled to get equitable relief under the writ jurisdiction.
Nitu Poddar vs Eastern Bank Ltd and anr 9 BLC 209.
Order XXXIX rule 1—
The Court of appeal has rightly found that the sebait had no authority to lease out the suit premises and the plaintiff had no locus standi to institute the suit and such finding remained unassailed. Both the Courts below exercised their discretion in not granting temporary injunction after applying judicial mind which cannot be interfered with.
Girindra Kumar Nath vs Bangladesh and others 8 BLC 253.
Order XXXIX rule 1—
When the defendants are in lawful possession and making construction by spending valuable money, the balance of convenience and inconvenience is definitely against the plaintiffs and in favour of the defendants. Any order of restraint of any nature would harm the defendants severely. In view of presumption arising out of registration of sale deed conveying title in the suit land, the learned Joint District Judge fell in serious error in thinking that the plaintiffs have got an arguable case. The impugned order of status quo therefore cannot be sustained in law.
Golden Tower International Ltd and others vs Md Sazzad All and others 9 BLC 596.
Order XXXIX rules 1 and 2—
There is no let or hindrance whatsoever in law that an organization training Judo cannot use the word Karate or vice versa. Plaintiff has at least no prima facie case for getting an order of temporary injunction where the question of irreparable injury and balance of convenience do not arise.
Bangladesh Karate Association vs- GS Bangladesh Judo Federation & others 6 BLC (AD) 104.
Order XXXIX rules 1 and 2—
As the plaintiff was given lease of the suit property for a shorter period as of a licensee and the lease period had already expired and, as such, the plaintiff had ho subsisting legal right in the suit property to pray for injunction. Order XXXIX rules 1 and 2 of the Code did not empower the Court to grant permanent injunction when the plaintiff has no subsisting interest in the property in dispute.
Government of Bangladesh & others vs Paper Converting & Packaging Ltd & others 6 BLC 467.
Order XXXIX rules 1 and 2—
Thepapers and documents prima facie show that the plaintiffs have been residing in their houses and buildings constructed on the suit land even adversely against the defendants on the strength of certain title deeds. Inquiry reports of the inquiry officers also show that the plaintiffs have been possessing the suit land. If the plaintiffs are evicted from the suit land they will suffer irreparable loss and injury and the defendants will not suffer any loss or injury. Balance of convenience and inconvenience is also in favour of the plaintiffs and hence the order of status quo will continue till the disposal of the suit. Defendants' contention is that the plaintiffs are none but trespassers. They might be trespassers but with some documents of title and the same will be decided in the trial. Continuous possession on the strength of however invalid title they are protected under law.
AKM Abul Kashem & others vs Kartik Chandra Shil 7 BLC 452.
Order XXXIX rules 1 and 2—
No injunction in partition suit in case of land in urban areas—It has been admitted by the learned Advocate for the petitioner that the principle has now been settled that in case of land in urban areas there shall not be any injunction restraining construction by a co-sharer but he has argued that in the instant case, the plaintiff will be deprived of his due share and for that reason injunction should be issued against the respondents from making any construction till disposal of the partition suit.
, In view of the fact that the plaintiff purchased specific 12 decimals of land from RS plot No. 2702 with the boundary and demarcated in a separate holding and he is in actual possession of that 12 decimals of land, the High Court Division committed no illegality in dismissing the appeal by setting aside the order of granting injunction passed by the trial Court.
Nasir Uddin Howalder (Md) vs Abul Kalam and ors 8 BLC (AD) 156.
Order XXXIX rules 1 and 2—
The allegations that the complaint is the product of grouping amongst teachers and that the committee that has been constituted by the Vice Chancellor of the Rajshahi University to enquire into the alleged allegation of non-awarding standard marks would not work in a bonafide manner and that because of such grouping among the teachers, the members of the enquiry committee would not act fairly and that they would proceed with the enquiry actuated by the group interest and that the enquiry committee would not act in unbiased manner. Those being the allegations against the enquiry committee the High Court Division was quite correct in refusing to interfere with the order of the learned District Judge granting temporary injunction.
Rajshahi University and others vs Professor Moklesur Rahman and another 8 BLC (AD) 109.
Order XXXIX rules 1 and 2—
When a proceeding has been initiated legally or illegally the petitioner may face the proceeding raising objection there. But initiation of the proceeding cannot by itself be a ground to pass an injunction as prayed for. The Courts below have not committed any illegality and wrong in dismissing the plaintiff's prayer for temporary injunction.
Haider AH Miah (Md) vs Islami Bank Bangladesh Ltd and others 8 BLC (AD)154.
Order XXXIX rules 1 & 2—
Both the Courts below have concurrently found that the plaintiffs have no prima facie title and possession in the suit land when the appellate Court further found that the plaintiffs had never been in possession in the suit land at least during the last 60 years and that the learned Subordinate Judge was legally justified in passing the impugned order of temporary injunction restraining the plaintiff petitioners from entering into the suit land pending disposal of the suit. Moreso, the concurrent finding of facts is binding upon the High Court Division.
Shah Abdul Latif and others vs Government of Bangladesh 8 BLC 301.
Order XXXIX rules 1 and 2—
In the instant case, there is no dispute that the opposite parties No. 1 to 3 hurriedly undertook the construction works in the second schedule land without prior approval of the site by the Government as per established principles being followed. Such unauthorised works should not be allowed to be implemented on the basis of work order issued by the opposite party No. 2 in respact of the constructions of the permanent building of Kulaura Union Parishad wherein the interest of the inhabitants of the Union is involved.
Shohag Mia (Md) and others vs Upazila Nirbahi Officer and others 8 BLC 343.
Order XXXIX rules 1 & 2—
The order rejecting petition for temporary injunction squarely falls under Order XLIII, Rule l(r) of the Code and it is appealable and not revisable and Revision Petition before the High Court Division is not maintainable.
NCCBL vs Prime Bank Limited and ors 8 BLC-391.
Order XXXIX rules 1 & 2—
Credit documents had beer, accepted by the Petitioner Bank after examining the same without any objection within a period of one year/six months. Opposite party Bank as Negotiating effected payment to beneficiary opposite party Company. Plea of fraud had not been adopted by Petitioner Bank at the time of acceptance of Letter of Credit. Petitioner Bank slept and slept and woke up- at a very late stage. Petitioner Bank after acceptance of Credit documents cannot turn back and cannot decline to reimburse payment given to beneficiary opposite party Company by opposite party Bank on the plea of fraud. It is observed that relief by way of injunction is available to that litigant who is prompt and vigilant and not to him who is indolent and sleep and sleep over his right. Petitioner Bank slepts and slepts and then lately rose seeking relief in bringing forth complaint of fraud. It was too late in the day to wake, up and. rise in ventilating grievances as to genuineness of credit documents.
NCCBL vs Prime Bank Limited and ors 8 BLC 391.
Order XXXIX rules 1 & 2—
Grounds and factors relied upon by learned Joint District Judge in refusing injunction demonstrates that orders under challenge in both Civil Revision cases were in harmony of the legal standing in International Commercial Credit and International Banking Practice and very much in consonance with the settled principles of law regulating grant or refusal of injunction. Loss and damage on the part of the petitioner Bank in reimbursing payment to opposite party Bank can adequately be compensated in terms of money. No injunction can be granted for non-performance of contractual obligations or to interfere with normal Banking transaction nor for a loss which can be compensated in terms of money.
NCCBL vs Prime Bank Limited and ors 8 BLC 391
Order XXXIX rules 1 and 2—
The issuing Bank is bound to make payment under back to back LC on production of papers which on the face of it appears to be correct and the Court cannot grant injunction restraining such payment as the Bank deals in documents and not with the quality/quantity of goods shipped.
Standard Bank Ltd vs Tripos Engineering and Trading Company and others 9 BLC (AD) 262.
Order XXXIX rules 1 and 2—
In urban area no co-sharer should be restrained by injunction from making construction. There could not be any second opinion to the authorities on the principle. But the principle cannot be extended to cover a case where very right to construction is based on a deed which is tainted by fraud as has been rightly found by the High Court Division. The said Division did not commit any error or illegality in finding that the plaintiffs have been able to prove the prima facie and arguable case and balance of convenience and inconvenience is in favour of the plaintiff and rightly directed to maintain status quo and to dispose of the suit in six months.
Hashem AH (Md) and anr vs Begum Nurjahan and ors 9 BLC (AD) 272.
Order XXXIX rules 1 and 2—
Admittedly, in the instant case, the defendant-appellant No. 1 terminated the contract. The party who terminates the contract cannot rely on that contract containing the Arbitration clause. Section 34 of the Arbitration Act is attracted only when an agreement to refer to arbitration exists and he who wants to avail of this section must have to show that it exists. Section 59(2) of the Arbitration Act No. 1 of 2001 saves the operation of the old Act No. X of 1940. 'It appears that prima facie the learned Subordinate Judge, Dhaka has got the jurisdiction to entertain and try the suit on merit and so long as the suit is not thrown out as being not maintainable an application for temporary injunction can be maintained.
Bangladesh Limited and another vs Maxwell Engineering Works Ltd and anr 9 BLC 96.
Order XXXIX rules and 2—
Mandatory Injunction can be granted under inherent power of the Court—The terms of provisions of Order XXXIX, Rules 1 and 2 of the Code do not appear to expressly authorise the exercise of power of granting interlocutory injunction in mandatory shape but the Court in the exercise of inherent power under section 151 got jurisdiction to issue a direction in mandatory form or to grant interlocutory mandatory injunction.
Mercantile Bank Limited, and others vs MS Ahsan 9BLC1.
Order XXXIX, rules 1 & 2—
The plaintiff and his predecessors has/had been running the Cinema Hall since 1943 and that without serving any notice to show cause the licence has been cancelled which is a clear violation of the principle of natural justice and the balance of convenience is in favour of the plaintiff rather than of the defendant as has been observed by the Appellate Court which calls for no interference.
Government of the People's Republic of Bangladesh and others vs Shamir Ghosh 10 BLC (AD) 12.
Order XXXIX rule 3—
Issuance of notice as contemplated in Rule 3 of the Order XXXIX of the Code is neither mandatory nor imperative in a petition for temporary injunction when petition stands rejected summarily by Court on latter's want of satisfaction as to existence of any case for injunction and summary rejection of petition for temporary injunction without issuance of notice is very much permitted by law.
NCCBL vs PB Landors 8 BLC 391.
Order XLI, rule 5—
There is no prohibition upon the jurisdiction of the appellate Court to stay the operation of the judgment and decree passed by the Artha Rin Adalat exercising the jurisdiction under order XLI, rule 5 of the Code, the impugned judgment and decree passed by the Artha Rin Adalat is stayed till disposal of the first appeal pending in the High Court Division.
Wadud Optics & Co, and others vs Pubali Bank Ltd 7 BLC 134.
Order XLI rule 19—
The amendment sought to be included in the application filed under Order XLI, rule 19 of the Code will not change the nature and character of the proceeding, rather it will enable the Court to determine the real question involved in the case.
Abdur Rahman & others vs Md Shamsul Huq and ors 6 BLC561.
Order XLI rule 19—
Government explained satisfactorily the delay in filing the Miscellaneous case and accordingly the application made under Order XLI rule 19, CPC was allowed by the impugned order calls for no interference.
Abul Quasem and others vs Government of Bangladesh 6 BLC 259.
Order XLI rule 19—
On a perusal of Order XL1II, rule l(t) read with section 106 of the Code, it is crystal clear that in the instant case the learned District Judge had no jurisdiction whatsoever to entertain the aforesaid Miscellaneous Appeal as well as the Review Miscellaneous case and as such the orders dated 6-9-94 and 25-5-96 passed in the Miscellaneous Appeal No. 39 of 1994 and Review Miscellaneous Case No. 358 of 1994 respectively are nullities and they have no existence in the eye of law and hence there is no scope to enter into the merits of the Rule. Accordingly, the Rule was discharged and the Miscellaneous Appeal No. 39 of 1994 was sent back to the learned District Judge for passing an order in accordance with law for presenting the same before the proper Court.
Abul Mansur '(Md) and ors vs Saha Chari Sarkar and others 8 BLC 298.
Order XLI rule 21—
Service return shows that the appellant was not at Barisal at the relevant time, the service is no service in the eye of law in the absence of any written document authorising respondent 1 to act as her agent to receive any summon or notice and hence no agency is created and the appeal was disposed of ex-parte and it will be reheard.
Hosne Ara Jalil vs Abdur Rab and others 6 BLC 130.
Order XLI, rule 21—
On perusal of the order book of FMA No. 42 of 1992 it clearly appears that there was no endorsement by the section as is always recorded to the effect that the appeal was in fact ready for hearing. The notice upon sole respondent returned unserved but it was not noted in the order book. Thus it is obvious that the appeal was heard and allowed ex parte on 2-11-1995 when the appeal was not made ready for hearing after due service of notice upon sole respondent, there was no legal scope for the Court to hold ex parte hearing and it attracts the provisions of Order XLI, rule 21 of the Code and the respondent-petitioner is entitled to rehearing of the appeal as provided under provision of Order XLI, rule 21 of the Code.
Amjad Hossain (Md) vs Bangladesh House Building Finance Corporation 10 BLC 429.
Order XLI rule 22—
Although the trial Court decreed the suit but held that the prayer for specific performance of contract was barred by limitation. Against such finding the plaintiff did neither file any cross objection before the appellate Court nor prefer any appeal. Considering the materials on record the learned appellate Court came to the right conclusion that the prayer for specific performance of contract was barred by limitation.
Nargis Begum vs Ezaz Ahmed 8 BLC 24.
Order XLI rule 23—
It appears that the original partition suit was filed in 1956 and then it was decreed and the appellate Court sent back the case on remand for fresh trial and additional written statement was allowed to be filed and the plaintiffs examined 3 witnesses before the remand and defendant also examined 2 witnesses but after remand no witness was examined from the side of the contesting defendant though hazira was filed on the date of trial, it is now too late to submit that the matter ought to have been sent back on remand to the trial Court.
Nurul Islam Palan and others vs Mohsin Palan and others 6 BLC (AD) 50.
Order XLI rule 27—
Clause (b) of Rule 27(1) of Order XLI of the Code of Civil Procedure confers discretion on the appellate Court to allow additional evidence in order "to enable it to pronounce judgment, or for any other substantial cause". This discretion should not be given a restricted interpretation as would, in effect, amount to tying down the hands of the appellate Court and stand in the way of doing complete justice in a cause.
Ann Mia and others vs Babar AH Mondal and others 6 BLC (AD) 98.
Order XLI rule 27—
It baffles our comprehension how the High Court Division could have set aside the decree of the trial Court which was not before it to consider. The Additional District Judge in whose court the appeal is now pending may admit additional evidence as admissible under Order XLI, rule 27 of the Code.
Raziur Rahman Chozvdhury (Md) vs Bangladesh & others 6 BLC (AD)W 6.
Order XLI rule 27—
The appellate Court appears to have relied on the sale certificate and writ of delivery of possession filed first time in appeal but there is no order admitting the same as additional evidence and marking them as exhibits and in such circumstances the Court of appeal was wrong in relying on sale certificate and the writ of delivery of possession in proof of auction sale and delivery of possession as well.
Abul Kashem Howlader vs Sultan Ahmed and others 9 BLC 333.
Order XLI rule 31—
The trial Court has correctly discussed the evidence on record in coming to its findings of facts, but the appellate Court did not consider all the material evidence taken into consideration by the trial Court nor did it advert to its reasoning which is contrary to the provisions of Order XLI, rule 31 of the Code and also perverse as has been rightly found by the High Court Division.
Profulla Kumar Biswas and another vs Nagen Chandra andors 6 BLC (AD) 130.
Order XLI rule 31—
If the finding is not supported by substantial evidence and materials on record interference is well justified. It is to be remembered that when the Court of first instance after considering the evidence and demeanour of the witnesses came to a finding which has been reversed by the appellate Court without giving due consideration on the proper aspect of the case, there cannot be any reason why the finding of the lower appellate Court should not be set aside as the same is not a proper judgment of J reversal.
Fatema Khatun vs Fazil Mia 6 BLC 241.
Order XLI rule 31—
As there is corroborative evidence of possession of plaintiffs' side over the suit land for more than 60 years which is the legal requirement for claiming title by way of adverse possession against the Government and the learned Assistant Judge rightly discussed the evidence on record and decreed the suit in favour of the plaintiffs when the judgment of the learned Subordinate Judge is not a proper judgment of reversal as he has not discussed the evidence on record and thereby failed to discharge his duties as an appellate Court which is the final court of fact.
Waziul Bashar (Md) and another vs Khaja Ahmed & others 6 BLC 124.
Order XLI rule 31—
It is a settled principle of law that the lower appellate Court being final court of fact will have to discuss and reassess the evidence on record independently while either reversing or affirming the finding of the trial Court. In case of reversal it is more incumbent upon the appellate Court to reassess the evidence on record and to arrive at his own independent finding. In the instant case, the specific findings of the trial Court have not been reversed by the lower appellate Court exercising its power under Order XLI, rule 31 of the Code. Accordingly, trial Court's judgment and decree are restored.
Hajarilal Mondal and others vs Md Mozaffor and others 8 BLC (AD) 77.
Order XLI rule 31—
It appears that the trial Court on proper appreciation of the evidence on record rightly held that the case as filed by the opposite party No. 1 was barred by limitation and such finding was not reversed by the appellate Court with sufficient and cogent reasons and thus the judgment of the appellate Court is not a proper judgment of reversal as per provisions of law as laid down in Order XLI, rule 31 of the Code.
Liakat Ali Sheikh & ors vs Mahatabuddin & ors 8 BLC 302.
Order XLI rule 31—
In the instant case, the High Court Division is the final Court of fact and it disposed of the case in a very slipshod manner without discussing the oral and documentary evidence adduced from the side of the plaintiff. Accordingly, the case was sent back on remand to the High Court Division for hearing the appeal afresh on merit.
Azizul Huq (Md) and others vs Puma Chandra Das 9 BLC (AD) 218.
Order XLI rule 31—
It appears that all the issues involved in the suit has rightly been framed, considered and decided by the trial Court with reference to the evidence and materials on record but the impugned judgment of the appellate Court is not a proper judgment of reversal as it failed to consider the evidence, oral and documentary on record and, as such, the appellate Court committed an error of law resulting in an error in the decision occasioning failure of justice.
Aminul Hoque (Md) vs Sanat Kumar Dhar and others 9 BLC 322.
Order XLI, rule 31—
The law is well settled that the extent of jurisdiction of the revisional Court is limited. The revisional Court is within its jurisdiction in reversing the judgment of the lower Court if the same is the result of misreading of the evidence or has been made leaving the legal evidence out of consideration or that while arriving at the decision misconstrued the documentary evidence or left the vital evidence out of consideration without assigning any reason. If the judgment of the lower Court does not suffer from any one of the aforesaid defects the revisional court is not competent to disturb the finding and decision arrived at by the last Court of fact.
Government of Bangladesh represented by the DC, Jessore vs Ershad Ali Moral bothers 10 BLC (AD) 34.
Order XLI, rule 31—
The documents, the Exhibits 8 and 9, were formally proved by PW 4, Habibur Rahman and PW 5, Giasuddin which all the more fortifies the title of the plaintiff but the same have not been considered at all by the appellate Court which it was under obligation to do as per Order XLI, rule 31 of the Code of Civil Procedure.
Siddick Ali (Md) alias Abu Siddiq vs Md Harun Mia and ors 10 BLC 492.
Order XLI, rule 31—
It appears that the trial Court considered all aspects to the case in decreeing the suit but the appellate Court failed to consider the material part of the statement of the witnesses and it did not properly reverse the findings and observations of the trial Court.
Moulavi Md Hossain vs Hashem Saoud alias Abul Hashem and others 10 BLC 498.
Order XLI, rule 33—
In the suit interest was prayed from 7-6-1995 which is the date of the pronouncement of the award till realisation and this interest is neither pre-reference period interest nor pendente lite interest but future interest, that is, from the date of the award till realisation of the money and this prayer appears to be in accordance with justice and fairness. Though neither the Arbitrators nor the trial Court granted interest the High Court Division in the exercise of the power conferred upon it under Order XLI, rule 33 of The Code of Civil Procedure can grant interest.
Chittagong Steel Mills Ltd and another vs MEC Dhaka and others 10 BLC 230.
Order XLIII rule l(c)—
Being unsuccessful in restoring the pre-emption case filed under section 96 of the State Acquisition and Tenancy Act the Pre-emptor preferred an appeal under Order XLIII, rule l(c) of the Code which was allowed by the learned Subordinate Judge in the impugned order. It is the view of our Appellate Division that no appeal lies against an order dissmissing an application made under Order IX, rule 13 of the Code for restoration of a proceeding under section 96 of the State Acquisition and Tenancy Act and such view shall apply equally to an application laid under Order IX, rule 9 of the Code for restoring a preemption case to its file and number. Thus, the Miscellaneous Appeal preferred before the District Judge was not tenable in law.
Haripada Mandal vs Bidhan Chandra Mondal 8 BLC 155.
Order XLIII rule l(r)—
The order rejecting petition for temporary injunction squarely falls under Order XLIII, Rule l(r) of the Code and it is appealable and not revisable and Revision Petition before the High Court Division is not maintainable.
NCCBLvsPBL 8 BLC 391.
Order XLIII rule l(t)—
On a perusal of Order XLIII, rule l(t) read with section 106 of the Code, it is crystal clear that in the instant case the learned District Judge had no jurisdiction whatsoever to entertain the aforesaid Miscellaneous Appeal as well as the Review Miscellaneous case and as such the orders dated 6-9-94 and 25-5-96 passed in the Miscellaneous Appeal No. 39 of 1994 and Review Miscellaneous Case No. 358 of 1994 respectively are nullities and they have no existence in the eye of law and hence there is no scope to enter into the merits of the Rule. Accordingly, the Rule was discharged and the Miscellaneous Appeal No. 39 of 1994 was sent back to the learned District Judge for passing an order ! in accordance with law for presenting the same before the proper Court.
Abul Mansur (Md) & ors vs SC Sarkar & ors 8 BLC 298.
Order XLVII rile 1—
On a perusal of Order XLIII, rule l(t) read with section 106 I of the Code, it is crystal clear that in the I instant case the learned District Judge had no jurisdiction whatsoever to entertain the I aforesaid Miscellaneous Appeal as well as the Review Miscellaneous case and as such the orders dated 6-9-94 and 25-5-96 passed in the Miscellaneous Appeal No. 39 of 1994 and Review Miscellaneous Case No. 358 of 1994 respectively are nullities and they have no existence in the eye of law and hence there is no scope to enter into the merits of the Rule. Accordingly, the Rule was discharged and the Miscellaneous Appeal No. 39 of 1994 was sent back to the learned District Judge for passing an order in accordance with law for presenting the same before the proper Court.
Abul Mansur (Md) & ors vs SC Sarkar & ors 8 BLC 298.
Order XLVII rule 1—
Learned Subordinate Judge committed a patent illegality in allowing the amendment application of the plaintiff-opposite parties dated 26-10-1993 on reviewing the order dated 27-3-94 recording rejection of amendment petition. In the event of rejection of the first amendment application there was no justification on the part of the learned Subordinate Judge to allow the second amendment application moreso on reviewing the order dated 27-3-94 recorded by him in refusing to amend' the plaint. Finality must attach to a decision rendered by a judge and the decision recorded by the said judge can be set aside or reversed not by the said judge but by a Superior Judge of a higher Court.
Abdul Hannan vs Sharfuddin Md Reza Hai & others 8 BLC 320.
Order XLVII rule 1—
The view taken and decisions recorded by learned Single Judge might have been erroneous and the erroneous decision, if any, could be challenged by petitioner on carrying a Civil Petition for Leave to Appeal before Appellate Division for correction of said decision. Decisions recorded by learned Single Judge was subject to correction by apex Court, ie Appellate Division, but not definitely by same Court (High Court Division) in exercise of a limited jurisdiction under rule 1 of Order XLVII of the Code.
Siddique (Md) Master vs Samsul Plaque 8 BLC 688.
Order XLVII rule 1—
Since the pre-emptor Subitri Sundari Mali transferred her land by way of gift dated 27-10-1999 in favour of substituted opposite party No. l(a) the contiguous plot No. 334 and got no subsisting interest on the contiguous plot No. 334 to the plot transferred which is plot No. 335 she got no right to be graced with a verdict of pre-emption. Both pre-emptor and the pre-emptee acquired equal status, that is strangers to case holding. Such transfer by way of gift was not within knowledge of the pre-emptee when civil revision case was Heard and disposed of. This is a discovery of a new and important matter which is a good ground for review of the decision in civil revision case. This can be also, characterised as an error apparent on the face of the record.
Mofizul Islam Sarker (Md) vs Subitri Sundari Mali and others 9 BLC 146.
Order XLVII rule 1—
Since there is no provision in the Artha Rin Adalat Ain contrary to the provision of Order XLVII rule 1 of the Code of Civil Procedure, an application before the Artha Rin Adalat is competent under Order XLVII, rule l(l)(b) of the Code of Civil Procedure.
Abdus Samad vs Sonali Bank and others 9 BLC 554.
Order XLVII rule 1—
Order XLVII, rule 1 of the Code empowers the writ Court to review their own judgment or order on the reason of mistake or error on the face of the record. In the instant case the High Court Division ought to have exercised their review power taking into consideration the annexures to the writ petition. Without following the usual course of remanding the writ petition for its disposal by the High Court Division, in the instant case, the Appellate Division allowed the appeal declaring the impugned Memo as illegal, without any lawful authority and of no \ legal effect.
Monoranjan Basu and others vs Bangladesh and ors 7 BLC (AD) 79.
Order XLVII rules 1, 2 and 8—
Learned Trial Judge on a consideration of proceedings between the parties, different orders, facts and circumstances of the case recorded order of restitution on allowing Review Miscellaneous Case and the said decision was maintained by Appellate Judge canvassing reasons. Mere registration of case in year 1995 cannot make opposite parties out of Court on point of limitation when petition under Order XLVII, rule 1 and section 151 of the Code had been presented on 2-1-93 within period of limitation fixed by law which is 90 days as provided in Article 173 of the Limitation Act. Omission to advert to apply mind to papers already on record and failure to take into consideration those papers is an error which is very much apparent on the face of the record. No exception can be taken to the decisions rendered and conclusion reached by the Judges of the Courts below.
Waliullah vs Hasina Begum & ors 8 BLC 694.
Order XLIX, rule 3—
It must be remembered that when the present Code was enacted by Parliament the Letters Patent of 1865 was in force and, as such, it was felt necessary by the Parliament to incorporate Part 9 and section 129 in Part 10 in the Code along with Order XLIX, for smooth exercise of those jurisdictions by the chartered High Courts. It appears that after the repeal of the Letters Patent when both the Ordinary Original Civil jurisdiction and the Extraordinary Original Civil Jurisdiction of the High Court has been thrown away the aforesaid provisions of section 118 of Part 9 and Order XLIX, rule 3 has become redundant, superfluous and unnecessary and today there is no scope for the High Court Division to exercise any Ordinary Original Civil Jurisdiction or Extraordinary Original Civil Jurisdiction. Therefore, the aforesaid provisions of the Code has become redundant, superfluous and -unnecessary. It, thus, appears that like the legal community even our Parliament, laboring under misconception of law, amended these provisions in 1960 and in 1978 but they have lost sight of the fact that the Dacca High Court had never exercised those jurisdictions till 1978 and after 1978 no more these jurisdictions are available to the High Court Division.
Sonali Bank vs Bengal Liner Ltd and others 10 BLC 148.